Opinion
No. 37029
Decided December 20, 1961.
Mandamus — To compel municipal council to perform legislative function — Writ not available to control legislative discretion.
APPEAL from the Court of Appeals for Cuyahoga County.
This action in mandamus was instituted in the Court of Appeals by the owner of a parcel of land, located in the city of Maple Heights, abutting on Kenton Avenue and subdivided into residential building lots, against the mayor, the commissioner of buildings, the president and members of council and the city. The relator seeks a writ requiring the respondents to take such action and do such things by way of legislation, resolution, ordinance or otherwise, as will permit relator to install a storm sewer, sanitary sewer and water lines in Kenton Avenue and to connect same with the main sewer and water systems of the city so as to enable relator to pave Kenton Avenue and obtain building permits for the construction of homes on relator's property.
The city planning commission approved a plat resubdividing relator's parcel of realty and also plans for the installation of storm and sanitary sewer lines and for the paving of Kenton Avenue. The plans for installation of the storm sewer, sanitary sewer, water lines and street paving were submitted to city council for its approval. Council deferred action pending investigation by it of the city's sewer systems. After investigation, council denied approval of the sewer, water and paving plans, for the reasons that Kenton Avenue is located in an area in which sewers are overloaded; that larger local sewers or larger mains would not solve the problem because the county mains cannot carry an additional load; and that as soon as repairs or improvements are made in the sewer system respondents will issue to relator such permits as are proper for the construction of homes in the area.
Relator sought no further administrative action but brought the instant proceeding in mandamus.
The Court of Appeals allowed the writ as prayed for.
An appeal as of right brings the cause to this court for review.
Messrs. Terrell, Williams Salim, for appellee.
Mr. Elmer R. Vanek, director of law, and Messrs. Krause, Klein Fromson, for appellants.
By this proceeding in mandamus, relator is attempting to control the legislative discretion of the city council of Maple Heights in the exercise of its police power. A writ of mandamus may not be used to control legislative discretion. See State, ex rel. De Ville Photography, Inc., v. McCarroll, Judge, 167 Ohio St. 210.
The relator having failed to establish a clear legal duty on the part of respondents to perform the acts requested, the Court of Appeals was in error in allowing the writ. The judgment of the Court of Appeals is reversed, and final judgment is rendered for respondents.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.